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England: Making provision for the continued operation of planning and environmental regulation after Brexit

  • United Kingdom
  • Brexit
  • Real estate planning
  • Real estate sector

02-04-2019

In preparation for the forthcoming withdrawal of the UK from the EU, the Government has been amending legislation and regulations relevant to town and country planning, infrastructure planning, environmental protection, air quality, environmental impact assessment, the environmental assessment of plans and processes, species and habitat protection. These changes are intended to amend and update EU-derived law in these areas into functional domestic regulation which will continue to operate effectively in England (and the UK where legislative responsibility is not otherwise devolved) following withdrawal from the EU. This transition to the new system of retained EU law is intended to operate regardless of whether agreement is reached on the terms of departure.

The changes made to the legislation and regulations include updating references to EU Directives to these Directives as these had effect immediately before “exit day”, updating references to the EU, EU institutions and administrative procedures to domestic equivalents, updating legal references to refer to domestic legislation and adjusting requirements for Governmental reporting as appropriate. For example, the requirement in the Conservation of Habitats and Species Regulations 2017 on the Secretary of State to propose sites eligible for identification as of Community importance on the basis of criteria set out in the Habitats Directive, will become an obligation on the Secretary of State to designates as special areas of conservation sites considered to be of national importance, on the basis of criteria to be established in the 2017 Regulations.

The legislative definition of “exit day” defines the day when the UK changes its laws to deal with the domestic consequences of exiting the EU and brings the new system into effect. As matters currently stand, in the absence of any further decisions, the “exit day” definition is 12 April at 11.00pm. Subject to any further decisions and with any necessary agreement at EU level for a revised Brexit day, further secondary legislation will need to be brought forward by the UK Government to amend the current legislative definition. Provision has been made for this process in the European Union (Withdrawal) Act 2018.

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